MobiliX v. Asterix in plea to top German court

Galling Gauls

The mobile open source project formerly known as MobiliX has stepped up its fight to have its long-running trademark dispute with the firm behind Asterix and Obelix heard by Germany's highest civil court.

Les Editions Albert René claims MobiliX is similar in name to Obelix, a character in Asterix the Gaul, and so infringes on its trademark. It began legal proceedings in 2001.

In the hearing in June 2002, the Landgericht Muenchen court found in favour of Werner Heuser, owner of the "MobiliX - UniX on Mobile Devices" project. However this decision was reversed by a German Appelation Court this February.

It ruled that "Obelix and MobiliX are very similar" and people might confuse the two.

The German Appelation Court ruling forced Heuser to change the name of the project from MobiliX to TuxMobil. The site, as before, provides information about *nix operating systems (such as Linux, BSD and Solaris) on mobile computers.

But Heuser's fight, through his lawyers Jaschinski, Biere & Brexl, to reclaim the MobiliX name from the indomitable Gauls continues.

On May 27 Prof. Dr. Achim Kraemer sent a detailed request to permit an appeal to the highest German civil court, the Bundesgerichtshof (BGH), in support of Heuser.

According to Heuser German civil law allows only a very few cases for an appeal to the BGH. "There must for example general public interests strongly be concerned," he writes.

In a long and detailed argumentation Prof. Dr. Kraemer criticises Les Editions Albert René's stance in the case.

"The commercial usage of domain names leads already at the time of their registration to preventive reactions by holders of older trademarks, which claim their trademarks as violated. Particular risks exist for so-called word-trademarks, which contain parts of the common language, if they are combined with suffixes or prefixes used in certain groups," he writes.

"If trademarks are protected [excessively], as the appeal court has done in our opinion, some very famous but fancy names may occupy a wide range of the language and it well become impossible for others to create new word-trademarks."

A decision of the BGH to permit the appeal is expected at the end of 2003. A final verdict will probably not be available until 2005 at the earliest, according to Heuser.

Heuser and his lawyers are confident that they will prevail in the end. Victory is important not just for MobiliX but for other projects, such as Masterix and Skrobelix, with trademarks ending on "ix", which have also run foul of Les Edition Albert René.

Details of the case against MobiliX, including information on other projects under threat, can be found here.

Werner Heuser will give a talk about the case at the 4th Libre Software meeting in Metz, France this July. ®